1994 PLP 2035 (SCMR)

‑‑‑‑O.VI, R. 17‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Pleadings‑‑ Amendment‑‑‑Defendant's application for amendment of his written statement was rejected by all the Courts including the High Court in Constitutional petition and also in intra‑Court appeal‑‑‑Validity‑‑‑Reasons assigned by High Court for dismissal of Constitutional petition and non‑interference with the finding of.. two Courts below that application was filed after seven years for amendment in written statement which was a very late stage and before that evidence lead been recorded and case was fixed for arguments, were correct and supported by the record‑‑‑Proposed amendment as stated in the application was such which was within the knowledge of petitioner and he could have easily mentioned it in the written statement which he did not do and there was no justifiable reason for him to wait for seven years to divulge it for the first time so late‑‑‑No flaw or legal infirmity was pointed out in the judgment of High Court to justify interference therewith‑‑‑Leave to appeal was refused in circumstances. Malik Saeed Ifzal Agral, Advocate Supreme Court and Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing: 22nd December, 1993. SAJJAD ALI SHAH, J: ‑‑Respondent No. 1 Muhammad Hanif filed a civil suit against the petitioner for permanent injunction on 13‑12‑1982, which is pending in the Court of Senior Civil Judge, Lahore. Written statement was filed by the petitioner as defendant in the suit on 7‑3‑1983. Petitioner filed application for amendment of his written statement under Order VI, Rule 17, C.P.C. asserting that plaintiff in the suit was never in possession at the time of institution of suit and forcibly occupied property in dispute on 6‑2‑1983. Application for amendment of written statement was dismissed by the trial Court on 16‑1‑1989 on the ground that it was filed with motive to delay the conclusion of hearing of the suit as the said application was filed belatedly after 6 years. In paragraph 3 of the written statement it was stated that defendant in the suit was in possession of the disputed property. If there was truth in the proposed amendment, the same could have been mentioned in the written statement.

2. Against the rejection of application of amendment of written statement, petitioner filed revision .which was dismissed by Additional District Judge, vide his order dated 16‑4‑1992. Petitioner then filed writ petition in the High Court, ‑which is dismissed on the ground that two Courts having jurisdiction have decided against allowing application for amendment in the written statement for valid reasons, hence interference was not warranted with such finding in the constitutional jurisdiction as held in the case of Noor Muhammad v. Sarwar Khan (PLD 1985 SC 131) particularly when it is not shown that discretion had been exercised arbitrarily, capriciously or fancifully. Since writ petition had been dismissed in the High Court by the learned Judge in the chamber, Intra‑Court appeal was filed which is dismissed in limine by Division Bench of the High Court as incompetent as contemplated under proviso to section 2 of the Law Reforms Ordinance, 1972.

3. We are satisfied with the reasons assigned by the High Court for dismissal of writ petition and non‑interference in the Constitutional jurisdiction on the finding of two Courts below that application was filed after 7 years for amendment in the written statement, which was a very late stage and before that evidence had been recorded and the case was fixed for arguments. We also agree that proposed amendment as stated in the application is such which was within the knowledge of the petitioner and he could have easily mentioned it in the written statement which he did not do and there was no justifiable reason for him to wait for 7 years to divulge it for the first time so late. We are unable to see any flaw or legal infirmity in the order passed by the High Court declining interference with the Constitutional jurisdiction. In the result leave is refused and the petition is dismissed. AA./A‑1107/S Leave refused.